Albertson's Inc.

National Labor Relations Board - Board Decisions

May 29, 1992

307 N.L.R.B. 787 (N.L.R.B. 1992)

787
307 NLRB No. 124
ALBERTSON’S INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 The Respondent has not established that these three secretaries
are ‘‘confidential employees’’ simply by virtue of their access to
confidential information. See, e.g., NLRB v. Hendricks County Rural
Electric Membership Corp., 454 U.S. 170 (1981).
3 The relevant portions of the warning document stated that Her-
nandez was being reprimanded for ‘‘violating ‘No-Solicitation Pol-
icy’ and creating unrest and disturbance’’ and that ‘‘any further vio-
lations of the company ‘No-Solicitation Policy’ or threats, intimida-
tion, coercion, retaliation, etc. at work toward other employees will
result in your immediate termination.’’
Albertson’s Inc. and United Food and Commercial
Workers Local 1000. Cases 16–CA–14713 and
16–CA–14713–2
May 29, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On September 25, 1991, Administrative Law Judge
Clifford H. Anderson issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in reply to the
exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order.
1. In part III,B,1,a,iii, of his decision, the judge
found that the Respondent unlawfully threatened em-
ployees at its Watauga store with respect to talking
about or soliciting on behalf of the Union. In doing so,
he found it unnecessary to resolve the status of Anna
Cavin—whether she was an employee or a supervisor
under the Act—because whether Store Manager
Mullen uttered the threat to employee Cavin or wheth-
er, on Mullen’s instructions, Supervisor Cavin relayed
the threat to other employees, a violation would be
made out. We affirm the judge’s conclusion that a vio-
lation was committed based on our finding that Cavin
acted as an agent of the Respondent within the mean-
ing of Section 2(13) when conveying Mullen’s threat
to statutory employees. It is unnecessary for us to re-
solve Cavin’s status further than this to establish that
an unfair labor practice occurred.
In the first place, because the judge credited Cavin’s
testimony that Store Manager Mullen directed Cavin to
‘‘pass on’’ to other employees his rule that anyone so-
liciting union support, or even ‘‘talking union,’’ would
be subject to termination, we have sufficient evidence
that Cavin was an agent with actual authority to utter
this threat to store employees. Her utterances pursuant
to that instruction are therefore attributable to the Re-
spondent. See Jacobo Marti & Sons, 264 NLRB 30, 33
fn. 11 (1982) (employee Syphrit).
Even in the absence of evidence of the specific in-
struction, we would find Cavin to be an agent under
the doctrine of apparent authority. Unlike others in the
Watauga store who have departmental supervisors,
Cavin works directly under Store Manager Mullen,
who has overall supervisory responsibility for the facil-
ity. Cavin, as head secretary in the customer service
department, serves, at the very least, as a conduit of
management’s orders and instructions, in light of her
oversight, scheduling, and direction of the work of the
three other secretaries in the department, and the au-
thority she possesses to reprimand them for poor work
performance.2 With respect to the other employees in
the store, Cavin is responsible for assuring that any
employee who violates the Respondent’s timecard pro-
cedure receives a disciplinary writeup, and, when em-
ployees are hired, she is responsible for making them
aware of the Respondent’s personnel policies, includ-
ing its no-solicitation/distribution rule.
Accordingly, when Cavin relayed Mullen’s general
prohibition of union discussions to the secretaries in
the customer service booth and the two bakery depart-
ment employees, and identified it as a company policy,
it was reasonable for those employees to believe that
Cavin was reflecting the Respondent’s policy and
speaking and acting for management. Thus she acted
as the Respondent’s agent in the commission of this
unfair labor practice. See, e.g., Williamson Piggly
Wiggly, 280 NLRB 1160, 1165–1166 (1986), enfd. 827
F.2d 1098 (6th Cir. 1987); Diehl Equipment Co., 297
NLRB 504 fn. 2 (1989); Einhorn Enterprises, 279
NLRB 576 (1986).
2. In part III,B,2,b, of his decision, the judge found,
inter alia, that the Respondent violated Section 8(a)(3)
and (1) by the addition of a ‘‘second’’ disciplinary
warning to the lawful warning issued employee Jose
Hernandez on August 14, 1990, concerning his viola-
tion of the Respondent’s valid no-
solicitation/distribution rule.3 The judge found that
Hernandez did not in fact engage in any misconduct
which created ‘‘unrest and disturbance,’’ or amounted
to ‘‘threats, intimidation, coercion, retaliation, etc.’’
We agree with the judge’s findings, and we affirm his
conclusion that the Respondent violated Section 8(a)(3)
and (1) by this ‘‘second’’ warning for the reasons stat-
ed below.
788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 These instances included the soliciting, while each was working,
of employees Sherry Culotta, Tina Olivarez, and Renee Clark—the
last in the incident described below that led directly to the warning
issued Hernandez. We agree with the judge that the written warning
issued Hernandez was lawful to the extent it covered these examples
of unprotected conduct.
5 We also take note of the Respondent’s concurrent unfair labor
practices at the Watauga store.
6 We are not suggesting that an employer may not take appropriate
action when an employee violates a lawful no-solicitation rule or en-
gages in other misconduct to which the employer has a right, and
in some cases an obligation, to respond. To the extent that the Re-
spondent’s warning was drafted to address the unprotected conduct
known to have been committed by Hernandez, it remains valid. An
appropriate response need not, however, sweep so broadly as to put
in doubt an employee’s right to engage in union solicitations pro-
tected by the Act without fear of punishment by his or her employer.
7 Although not noted by the judge, the record establishes suffi-
ciently that the two stores are in the same corporate district.
Thomas Lawson, store manager of the Respondent’s
Irving store, became aware of the Union’s organizing
drive in early August 1990. He was informed the fol-
lowing week that Hernandez was soliciting for the
Union. Lawson learned that Hernandez’ soliciting in-
cluded instances in which his conduct violated the Re-
spondent’s lawful no-solicitation/distribution rule and
in that regard was not protected activity.4 In addition,
however, Lawson learned that Hernandez had engaged
in a protected discussion with Clark in the breakroom.
When Clark informed Lawson of the breakroom inci-
dent, he told Clark he would see what he could do
about it, although he later admitted that Hernandez’
conduct in this instance did not violate the no-
solicitation/distribution rule. The incident which trig-
gered Lawson’s disciplinary writeup of Hernandez oc-
curred the next day when, according to Clark, Her-
nandez approached her at a cash register that she was
cleaning and took her aside to ask her if she had as
yet made any kind of decision about the Union. When
she replied she had not, Hernandez told her to let him
know when she did, and then walked away.
The foregoing evidence indicates that the dis-
ciplining of Hernandez occurred very early in the orga-
nizing drive, and 1 day after the Respondent became
aware that Hernandez was engaged in protected activ-
ity. In addition, we note the overreaching character of
the ‘‘second’’ warning, especially with respect to
‘‘threats,’’ ‘‘intimidation,’’ ‘‘coercion,’’ and ‘‘retalia-
tion’’ which, as is evident from Clark’s description of
the incident above, did not occur, and most especially
the use of ‘‘etc.,’’ which left ambiguous and open-
ended the nature of any future conduct at work which
would result in Hernandez’ discharge. It could reason-
ably have been construed to include protected in-
stances of solicitation like that in which Hernandez en-
gaged in the breakroom.
In view of the circumstances, particularly the timing
of the ‘‘second’’ warning in relation to both the incip-
ient organizing campaign and the Respondent’s knowl-
edge of Hernandez’ protected activity, and the
warning’s pretextual nature (to the extent that it ad-
dressed conduct not engaged in by Hernandez), we
find that it was motivated by the Respondent’s desire
to retaliate against him for his lawful union activity
and to ‘‘chill’’ such activity in the future. See, e.g.,
Lancaster Community Hospital, 303 NLRB 238
(1991).5 We therefore conclude that the ‘‘second’’
warning violated Section 8(a)(3) and (1).6
3. As part of the remedy, the judge recommended
that the same notice be posted at both the Watauga and
Irving stores in view of the ‘‘similarity of violations’’
found at the two facilities. The Respondent has ex-
cepted to the judge’s recommendation. We will adopt
the judge’s order for a single notice at both stores be-
cause it is a reasonable, measured exercise of the
Board’s remedial discretion, and consistent with what
the Board has done in the past in similar cir-
cumstances.
Pursuant to Section 10(c), the Board has broad dis-
cretion to devise remedies that effectuate the purposes
and policies of the Act. See, e.g., Sure-Tan, Inc. v.
NLRB, 467 U.S. 883, 898 (1984). At the same time,
we are required to tailor our remedy to the unfair labor
practices the remedy is intended to redress. Id. at 900.
The remedial question here is whether it is appropriate
to post the same notice at the Respondent’s two stores,
when both are in the same corporate district,7 when
employees in both stores were involved in a contem-
poraneous union organizing drive, and where the Re-
spondent committed substantially similar unfair labor
practices at each store in reaction to the campaign.
Although not fully analyzed by the judge, it is ap-
parent that there is considerable similarity in the nature
of the unfair labor practices committed at the two
stores. At the Watauga store, employee Marquez was
unlawfully interrogated concerning her discussions
with union representatives. In addition, employees in
the bakery department and the customer service booth
were unlawfully threatened with regard to talking
about or soliciting for the Union. At the Irving store,
the Respondent created an unlawful, overbroad no-so-
licitation rule for use against employee Hernandez and
discriminatorily disciplined him because of his pro-
tected solicitations on the Union’s behalf. The common
factor in all these unfair labor practices is the Re-
spondent’s encroachment on the Section 7 rights of
employees at both stores to discuss the organizing
drive then taking place—whether involving the ex-
change of information and opinion about it, or the so-
licitation of other employees on behalf of the Union.
789ALBERTSON’S INC.
8 We note that our Order in this case does not involve extending
a notice-posting remedy to facilities of the Respondent where no un-
fair labor practices have been committed. See, e.g., Postal Service,
303 NLRB 463 fn. 5 (1991), and Albertson’s Inc., 300 NLRB 1013
fn. 2 (1990). In each case the Board ordered the posting of notices
well beyond the location where the unfair labor practice occurred be-
cause of the linkage between the violation and a corporate policy in
effect at other locations as well.
In G. C. Murphy Co., 216 NLRB 785 (1975), the
Board found it appropriate to post a single notice at
the two stores where the employer had committed un-
fair labor practices, because of the ‘‘considerable simi-
larity in the nature of the violations in the two stores’’
and because they were apparently located in the same
corporate region in the employer’s organization. Id. at
793. Accord: ABC Liquors, Inc., 263 NLRB 1271 fn.
4 (1982), and Union Carbide Corp., 259 NLRB 974
fn. 2 (1981), enfd. in relevant part 714 F.2d 657 (6th
Cir. 1983), in which the Board, rejecting a broader no-
tice-posting remedy, ordered a single notice to be post-
ed at the employer’s two facilities where violations oc-
curred. The circumstances of the instant case are sig-
nificantly similar to those in G. C. Murphy and subse-
quent precedent.
In this case, given the fact that the employees at the
two stores were the subjects of a contemporaneous or-
ganizing drive by the same Union, and given the fur-
ther fact that the two stores are located in the same
metropolitan area as well as the same corporate dis-
trict, there is at least reasonable cause for concern that
the employees of one store would become aware of the
Respondent’s similar conduct at the other. It is there-
fore appropriate for the employees at each store to be
informed not only of the unlawfulness of the Respond-
ent’s conduct at their own facility, but also of the simi-
larly unlawful character of the acts committed contem-
poraneously by the Respondent at the other store. It is
equally appropriate that the Respondent acknowledge
to the employees of both stores its obligation to refrain
from all such unlawful conduct. Accordingly, we find
that the judge’s recommendation for a single notice to
be posted at both stores presents a proper exercise of
the Board’s remedial authority.8
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Albertson’s Inc., Fort
Worth, Texas, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Ruth Small, Esq., for the General Counsel.
Daniel L. Nash, Richard N. Appel, and Victoria A. Higman,
Esqs. (Akin, Gump, Strauss, Hauer, & Feld), of Wash-
ington, D.C., and R. Bruce Gordon, Esq., of Orlando, Flor-
ida, for the Respondent.
Scott A. Rosuck, Esq. (Hicks & James), of Dallas, Texas, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on April 16, 17, 18, and 30 and May
1, 2, and 3, 1991, in Fort Worth, Texas. Posthearing briefs
were submitted on June 28, 1991. The above-captioned mat-
ter arose as follows.
On August 23, 1990, United Food and Commercial Work-
ers Local 1000 (the Charging Party or the Union) filed a
charge with the Fort Worth, Texas Regional Office of the
National Labor Relations Board (Board), Region 16, dock-
eted as Case 16–CA–14713 against Albertson’s Inc. (Re-
spondent or the Employer) and amended that charge on Oc-
tober 16, 1990, and again on November 14, 1990. On Octo-
ber 31, 1990, the Regional Director for Region 16 (the Re-
gional Director) issued an order consolidating cases, consoli-
dated complaint and notice of hearing respecting Case 16–
CA–14713 and a separate case filed by a separate labor orga-
nization against Respondent, Case 16–CA–14666. The Re-
gional Director amended that complaint on November 21,
1990.
On October 20, 1990, the Union filed a second charge
docketed as Case 16–CA–14713–2 against Respondent. On
December 7, 1990, the Regional Director issued a second
order consolidating cases, consolidated complaint and notice
of hearing, consolidating Case 16–CA–14713–2 with Cases
16–CA–14666 and 16–CA–14713. At the opening of the
hearing, I approved the General Counsel’s motion to sever
Case 16–CA–14666 based on an out of Board resolution of
that single case. Trial proceeded on the remaining cases as
captioned above.
The consolidated amended complaint as further amended
at the hearing alleges conduct at two of Respondent’s retail
facilities located in Watauga and Irving, Texas. The com-
plaint alleges that at its Irving facility in midsummer 1990,
Respondent enforced an overlybroad no-solicitation and no-
distribution policy. The complaint further alleges that Re-
spondent at its Watauga store interrogated employees re-
specting union authorization cards, threatened to enforce an
unlawfully broad no-solicitation clause and, finally, threat-
ened employees with discharge for engaging in union activi-
ties. The complaint alleges these actions violated Section
8(a)(1) of the National Labor Relations Act (Act).
The complaint further alleges that Respondent at its Irving
facility issued a written reprimand to employee Jose Her-
nandez and at its Watauga store discharged employees Cyn-
thia Laverne McClendon and Ray Bennett. Each of these ac-
tions is alleged to violate Section 8(a)(3) and (1) of the Act.
Respondent in its answer denies that it has in any way vio-
lated the Act as alleged.
All parties were given full opportunity to participate at the
hearing, to introduce relevant evidence, to call, examine and
cross-examine witnesses, to argue orally, and to file
posthearing briefs.
On the entire record, including helpful briefs from the
General Counsel and Respondent, and from my observation
of the witnesses and their demeanor, I make the following
790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 As a result of the pleadings and the stipulations of counsel at the
trial, there were few disputes of fact regarding collateral matters.
Where not otherwise noted, the findings are based on the pleadings,
the stipulations of counsel, or unchallenged credible evidence.
2 All dates refer to 1990 unless otherwise indicated.
FINDINGS OF FACT1
I. JURISDICTION
At all times material, Respondent has been a Delaware
corporation with places of business in the greater Dallas/Fort
Worth, Texas metropolitan area where it has been engaged
in the retail sale of groceries and related items. Respondent,
as part of its business operations, annually enjoys revenues
in excess of $500,000 and annually purchases and receives
goods or services at its Texas facilities from outside the State
of Texas of a value in excess of $50,000.
The complaint alleges, the answer admits, and, based on
the above, I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Events
The events at issue occurred during the course of an orga-
nizing campaign at Respondent’s facilities in the greater
Dallas/Fort Worth metropolitan area. The two facilities in-
volved are large continuously open retail multidepartment all
purpose grocery stores. At all relevant times Respondent
maintained and publicized by both posting and distribution to
all new employees a facially valid no-solicitation and dis-
tribution rule at each facility, inter alia, prohibiting non-
employees from soliciting and distributing literature on the
premises and limiting employee solicitation and distribution
activities to nonworking time and nonworking areas. The rel-
evant circumstances may be best set forth on a store-by-store
basis.
1. The Watauga store
Respondent’s Watauga store’s general manager at relevant
times was Hank Mullen and its assistant store director was
Greg Moore. The market manager was Jim Ferrara, the deli
manager was Rick Olinde, and the produce manager was
Bob Diaz. All are admitted agents of Respondent.
a. The initial authorization card events—paragraph 10
of the complaint
In July 1990,2 the Union began an organizing campaign
among Respondent’s stores in the greater Dallas/Fort Worth
metropolitan area including Respondent’s Watauga store.
Cynthia Laverne McClendon, then a service deli clerk, testi-
fied that she was working at the store in July when union
organizers entered and passed out union authorization cards
to Respondent’s employees including her fellow deli em-
ployee, Joey George. McClendon testified that the union or-
ganizer introduced himself to George who was working in
the deli area at the time and handed George ‘‘some’’ author-
ization cards. George put the cards in a drawer in the deli
area.
McClendon testified that sometime later Deli Manager
Rick Olinde asked George if anyone had given him any
‘‘union cards’’ and that George ‘‘said yes, and he walked
over to the drawer and got them out and handed them to
[Olinde].’’ Olinde, in McClendon’s recollection, said that he
was going to turn the cards in to the manager on duty and
left the area with the cards.
Rick Olinde testified that he first learned of union solicita-
tion at the facility on his return from lunch. He recalled that
deli employee Joey George spoke to him as he was
transversing the deli and told him:
Hey, Rick, while you were at lunch, some guy from the
union came in and gave me these cards and sign-up
sheets, and I just stuck them over here in this drawer.
Olinde testified that he asked George to repeat what he had
said and that George did so. Olinde then told George that the
store had a no-solicitation policy and that he was glad
George had reported the matter to him. Olinde added that
George should in future the tell solicitors that he could not
accept such materials because of the no-solicitation policy.
Olinde testified that he then took the cards out of the junk
drawer and reported to the on duty manager that the no-solic-
itation rule had been broken. George did not testify.
b. Subsequent union activity conversations—paragraph
8(a) of the complaint
Hermelinda ‘‘Linda’’ Marquez, a produce clerk, testified
that in July she was working at the facility and discovered
a union authorization card on the shopping cart she was
using in her duties. She testified she presented the card to
her immediate supervisor, Produce Manager Bob Diaz, in the
produce department in the presence of two other produce em-
ployees. In her recollection Diaz became angry, took the
card, and threw it in the trash. Marquez recalled Diaz stating:
The [union] organizers were just being run out of the
store . . . And to let him know if anyone else came
around, handed me a card, or talked to me about it.
Marquez’ affidavit taken during the Board investigation at-
tributed to Diaz the statement: ‘‘He said to tell him if anyone
from the union talked to me.’’
Bob Diaz testified that he had a conversation with
Marquez in the presence of former produce employee John
Lopez in the produce room. Diaz recalled that Marquez
walked up to him and told him that ‘‘an individual had just
come into the back room and handed out some cards. And
it was two or three cards that she had handed to me.’’ Diaz
asked Marquez who the individual was and she answered
that she did not know. Diaz asked for a physical description
of the person which Marquez gave him. He then looked for
the individual in the other areas of the store and, in passing,
turned the authorization cards into the customer service
booth. Diaz then returned to the produce area. There, in his
recollection, Marquez asked him if he had located the indi-
vidual. Diaz answered that he had not.
Marquez then asked Diaz, in his memory, what she should
do if such a situation again presented itself. Diaz responded
791ALBERTSON’S INC.
that if anyone came into the back while she was working and
disrupted her work she was to call one of the managers on
the intercom.
Marquez testified further that about 1 month after these
events, she was in the upstairs portion of the store at a table
used to prepare signs. She testified that she was alone with
Store Manager Hank Mullen when he asked her ‘‘if anyone
from the union had been talked [sic] to me.’’ Marquez an-
swered, in her recollection, that she had not done so ‘‘since
the last time . . . he had run them out of the store.’’ In re-
sponse to leading questions from the General Counsel,
Marquez recalled that Mullen added that the ‘‘union had
been talking to some of the employees’’ and misstating facts
to them. Marquez further recalled that Mullen told her to
‘‘let him know if anyone would talk about the union.’’
Mullen recalled a conversation with Marquez about solici-
tation in late summer or early fall but placed the conversa-
tion in his office. He testified that Marquez came to his of-
fice and reported on a meeting of floral managers she had
attended. She noted, in Mullen’s memory, that another fe-
male employee in the car she was riding in had ‘‘a car full
of union cards and had asked her to join the union.’’ Mullen
recalled that Marquez then asked him if the store still has
‘‘union people coming into the store passing out cards?’’
Mullen answered that he did not think so and eventually the
conversation ended without more relevant to unions being
said. Mullen specifically denied asking Marquez to report
union activities to him.
c. The Cavin-Mullen conversations— paragraphs 8(b),
(c), and (e) of the complaint
Anna Cavin, the head bookkeeper at the Watauga store,
normally works in the customer service booth located on the
selling floor. She testified that in July or August while work-
ing alone on a sales report in the booth, Store Manager
Mullen sat next to her. She recalled he told her: ‘‘I am going
to tell you since you work here that anyone talking or solic-
iting union, that is grounds for termination.’’ Cavin testified
she answered by saying ‘‘okay’’ at which point Mullen told
her to ‘‘pass it on’’ to other employees.
Cavin testified that thereafter she ‘‘passed it on’’ to the
three secretarial employees who worked in the customer
service booth and later to two employees in the bakery de-
partment. She recalled that she told them: ‘‘you can’t talk
about the union. It is against the company policy.’’
Mullen recalled the conversation. He testified:
Well, I told her that since she works for me, she needs
to understand that she is a confiden[tial] employee and
she has access to a lot of information that nobody else
in the store has access to, and that all this—that she
needs to keep all this information to herself.
Mullen specifically denied ever instructing Cavin not to dis-
cuss the Union. Further he specifically denied ever telling
Cavin to tell other employees that they could not ‘‘talk about
the union in the store.’’
Cavin further recalled that a few weeks after the initial
conversation, she was alone with Mullen in his upstairs of-
fice. Mullen stated:
that he felt like he was the messenger and that, you
know, and William [Emmons, Respondent’s regional
vice president]—he had to report everything to William
about the union activity, and he felt like the messenger
would be shot.
Mullen recalled the circumstances of this conversation dif-
ferently. He testified that he was in his office on the tele-
phone speaking to John Materni, Respondent’s regional head
of personnel relations. He told Materni that he hated to con-
stantly call about events at the store pertaining to the orga-
nizing efforts of the Union
because this reminds me in the old days of where they
used to shoot the bearer of bad news or kill—I said kill
the bearer of bad news, you know, like shoot the mes-
senger and get rid of the problem.
Mullen testified he was not aware that Cavin was listening
to this conversation by virtue of being in the outer office, but
that ‘‘it wasn’t anything she didn’t already know about.’’
d. The Barslow-Mullen conversation—paragraph 8(d)
of the complaint
Zelda Barslow, a market clerk, became aware of the
Union’s organizing efforts in June or July. She perceived her
activities to be under scrutiny by management and spoke to
her market manager, Jim Ferrara, about the matter. Ferrara,
in her recollection, asked if she wanted him to speak to the
store manager or if she desired to. In late July or early Au-
gust, she spoke to Mullen and Ferrara in Mullen’s office.
Barslow told Mullen that since the union authorization cards
had appeared, he had been watching her more and other peo-
ple were screening her telephone calls. She added that other
people had reported to her and she ‘‘didn’t think it was right
for them to be watching me or accusing me of anything.’’
Barslow recalled that Mullen answered that her problems
and perceptions were mistakes or simply innocent coinci-
dences. She recalled that Ferrara discussed his own bad ex-
periences with and disapproval of the Union. She further re-
called that Mullen mentioned that the store had a rule against
solicitation. Mullen said:
The solicitation was you couldn’t do it at the—do any-
thing at the store. He said I couldn’t talk about—what-
ever I did away from the store—or off the clock and
away from the store was fine with him, but when I was
on company time or in the store, then I couldn’t discuss
union.
Mullen testified his conversation with Barslow occurred in
early fall. He placed the conversation in the store meat deli
and indicated that, while not sure, he did not believe Jim
Ferrara was present. Mullen recalled that Barslow com-
plained of being spied on because ‘‘everybody thinks that
she belongs to the union.’’ Mullen told her that he did not
know what she was talking about, that she was not under
suspicion and, further, told her ‘‘[you] can join the union;
you can do whatever you want on your own time.’’ Mullen
specifically denied that he or anyone else asked Barslow
about her support for the Union or her reasons for supporting
the Union. He further denied telling her that she was not per-
792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mitted to engage in solicitation anywhere in the store. Ferrara
did not testify.
e. The termination of employment of Steve Bennett—
paragraph 13 of the complaint
Steve Bennett started work at the Watauga store as a
produce clerk in or about June 1990. He had previous experi-
ence as a produce clerk at a different grocery store chain. He
was discharged on August 17.
Bennett testified that he became aware of the Union’s or-
ganizing efforts in late July or August 1 and thereafter par-
ticipated actively in the Union’s organizing activities. Thus
he testified that he attended union meetings, passed out au-
thorization cards and fliers, and spoke with and solicited
other employees.
The circumstances of Bennett’s termination were recited
by witnesses in two rather inconsistent scenarios. Bennett
testified he was complimented by management including
Bobby Diaz, the produce manager and his immediate super-
visor, and received no complaints nor written warnings dur-
ing his employment. Former employee Mario Rodriguez tes-
tified to Bennett’s good work habits.
Produce Manager Bobby Diaz testified that Bennett ini-
tially was trained by fellow employees in the techniques Re-
spondent used which were different from those utilized by
Bennett’s previous employer. Over time Diaz and Mullen
testified that Bennett failed to adjust to Respondent’s proce-
dures, did not take advice and instruction well, and had
growing difficulty working amicably with the other produce
clerks. In late July or early August and thereafter, manage-
ment received complaints from produce clerks about Bennett.
Diaz and Mullen testified that they had a conversation just
before Diaz was to commence his vacation on August 11 or
12 about Bennett. Diaz indicated to Mullen that he was
going to terminate Bennett on his return unless his work im-
proved. Mullen testified that he told Diaz initially to termi-
nate Bennett before he went on vacation but Diaz demurred
because such an action would leave the department short-
handed. Mullen testified that on the evening of August 17
before Diaz had returned from vacation, he and Bennett has
a conversation respecting produce department staff. Mullen
determined that Bennett’s conduct was continuing to cause
conflict in the department and decided to terminate him. The
following day, August 18, Mullen discharged Bennett.
Mullen denied that Bennett’s union activities were either
known to him or in any way a factor in Bennett’s discharge.
f. The termination of employment of Cynthia Laverne
McClendon—paragraph 14 of the complaint
Cynthia Laverne McClendon was employed as a deli clerk
until October 16. How her employment ended is in dispute.
As noted supra, McClendon was involved in the events at the
store on the first day of the Union’s organizing drive. There-
after she was an active union supporter passing out author-
ization cards, attending union meetings, and soliciting fellow
employees.
McClendon came to be dissatisfied with her wage rate as
a longtime employee in the deli department even though she
was classified as and paid at the highest deli clerk wage rate.
On October 13, she spoke to her immediate supervisor, Rick
Olinde, about obtaining a wage increase or a transfer to an-
other department with a higher wage. Olinde praised her
abilities and effort and said he would do what he could.
Thereafter a meeting was held on October 16, McClendon’s
next workday, between McClendon, Olinde, and Mullen in
Mullen’s office.
McClendon testified that in the meeting Mullen asked her
if she would like a raise or a transfer, to which she re-
sponded affirmatively. Mullen then said: ‘‘if you can’t get a
raise or a transfer, would you give your two weeks
notice[?]’’ McClendon recalled that she answered by saying
she could not keep ‘‘busting her rear end’’ as which point
Mullen told her she could ‘‘go and punch out.’’ McClendon
specifically denied telling Mullen that she would either quit
or look for another job, if she was not given either a raise
or a transfer. McClendon further recalled that Mullen told
her he would give her neither a raise nor a transfer. She spe-
cifically denied being told that any transfer would necessitate
an initial pay cut because of her lack of experience in the
new position.
Mullen testified that following initial greetings, he asked
McClendon what he could do for her and she answered that
she needed a raise. Mullen testified that he then explained
to McClendon that she was at the top rate in the deli depart-
ment and could not receive a wage increase in that depart-
ment. She responded that she could then transfer to another
department to obtain a raise. Mullen answered that, if
McClendon received a transfer to the ‘‘front end,’’ she
would not get a raise but would rather take a ‘‘serious cut
in pay.’’ McClendon, in Mullen’s recollection, shook her
head in negation stating that she could not do that. Mullen
repeated that he could not do as she asked. McClendon then
answered: ‘‘either I get a raise or I am going to quit or—
get a transfer to another department so I can get a raise or
I am going to quit.’’ Mullen repeated McClendon’s statement
that she was determined to obtain a raise or a transfer to get
a raise else she would quit. McClendon agreed that was her
position. Mullen testified that conversation continued:
And I said, Well, LaVerne [McClendon], I can’t
transfer you to the front end at the same rate of pay;
I can’t give you a raise. I am sorry. She said, Well, that
is it then and stood up.
. . . .
She got up, Rick [Olinde] opened the door; she
turned around and said something. Rick turned around
and told me and said, She wants to know if you want
her two-week notice. I said, No, that won’t be nec-
essary.
Mullen further recalled that after McClendon indicated she
was in fact going to quit that he told her to be sure to
‘‘punch out.’’ Olinde’s version of the conversation essen-
tially corroborates Mullen’s.
2. The Irving store
The Irving facility’s store manager at all relevant times
was Thomas Lawson, and Jeffrey David Tinsley was the
drug manager. Each is an admitted agent of Respondent.
The sole events in controversy respecting the Irving facil-
ity deal with Hernandez as alleged in paragraphs 9 and 12
of the complaint.
793ALBERTSON’S INC.
Jose Hernandez, the scan coordinator, testified he became
aware of the Union’s organizing drive in or around August
and became a union supporter. He sought to convince his fel-
low employees to join him in supporting the Union. Employ-
ees Sherry Culotta and Tina Olivarez testified that they were
solicited by Hernandez over a period of a few days while
working. Each complained to Drug Manager Tinsley who
passed on their complaints to Lawson. Lawson in turn passed
on the complaints to the regional personnel office in the per-
son of John Materni’s assistant, George Hayman, in Orlando,
Florida.
A few days later Hernandez spoke to fellow employee
Renee Clark. Clark, formerly a cashier at the Irving store but
now employed at a different Respondent location, testified
that she was approached by Hernandez during her lunch in
the breakroom. She recalled that Hernandez asked her if she
had heard about the Union and touted its desirability for Ir-
ving store employees. Another person entered the breakroom
and Hernandez broke off the conversation. When that indi-
vidual left he resumed the conversation telling Clark not to
talk to others about the Union, that management was not to
be involved and to ‘‘come and ask him’’ if she had any
questions. Clark testified that this conversation, with its sur-
reptitiousness, made her ‘‘a little bit nervous.’’
Clark almost immediately thereafter asked another em-
ployee, Sabina Overburg, about the Union. Overburg referred
her to Store Manager Lawson. Clark then asked to speak to
Lawson and met with him alone in his office. Clark testified
she asked Lawson about the Union and he discussed it with
her. Clark then reported what Hernandez had told her, telling
Lawson that Hernandez ‘‘made me feel uncomfortable about
it, that—like we were going to do something wrong; we
were fixing to do something wrong.’’ She testified that
Lawson then told her he would ‘‘see what I can do.’’ The
meeting then ended.
Lawson recalled that Clark came to him ‘‘very upset’’ and
reporting a ‘‘real bad feeling.’’ Lawson testified:
[Clark] told me that she had been approached by Jose
Hernandez in the break room and that he was soliciting
for the union and that she felt threatened by one of the
things he said. . . . She said that Jose told he that
somebody had been going to management and telling
them that they were soliciting for the union and that
they were going to find out who it was.
Lawson testified that he did not regard Hernandez’
breakroom conversation with Clark as a violation of Re-
spondent’s no-solicitation policy.
The following day Hernandez again spoke to Clark while
she was at the ‘‘front end’’ cleaning a cash register. Clark
testified that Hernandez
came up to me, and he grabbed my arm, and he pulled
me over, and he said, Have you made any kind of deci-
sion yet? And I said, No, I haven’t. But he was looking
around like, you know, making sure nobody was listen-
ing to us talk. . . . He just said, Let me know when
you do, and he walked away.
Lawson testified he observed this meeting between Clark and
Hernandez.
Clark then went to Lawson’s office and reported to him.
She testified:
I told him that Jose [Hernandez] had approached me
the second time, that when he did he scared me.
. . . .
Dave [Larson] asked me how did he scare me, and
I said it was just the way that he had pulled me over
and whispered in my ear, and he was looking all over
the place, like—he made it seem like—when he said,
Well, when you decide, let me know—the way he said
it was like, you better decide quick, and it better be
yes.
. . . .
[Larson] asked me if I was on the clock when Jose
had approached me, and I told him yes. . . . He told
me he would see what he could do.
Lawson recalled that Clark told him that Hernandez had
again approached her about the Union. She said that she still
‘‘felt threatened’’ and appeared upset.
Lawson testified that he then reported the two conversa-
tions he had with Clark, but not other events respecting Her-
nandez, to John Materni’s assistant, George Hayman, in Or-
lando, Florida. Lawson was provided with language for a
‘‘write-up’’ of Hernandez and told to issue it to him.
Hernandez was soon summoned to Lawson’s office where
he met with Lawson and Tinsley. Hernandez testified that he
was told by Lawson that he was ‘‘getting written up for so-
liciting the union in the store.’’ Lawson testified he told Her-
nandez he was being written up for ‘‘violating the solicita-
tion policy and for creating unrest and disturbance in the
store.’’ Hernandez was presented with a standard form dated
August 14, 1990, signed by Lawson and ‘‘witnessed’’ by
Tinsley. Lawson then read the form to him. The form has
a printed entry: ‘‘This date the above named employee has
been reprimanded concerning the following:’’ Entered into
the space provided in what appears to be the hand of Lawson
is the entry:
Violation ‘‘no Solicitation Policy’’ and creating unrest
and disturbance.
The form contained a second printed entry stating: ‘‘The fol-
lowing specific improvements have been outlined to correct
the above stated areas of deficiency.’’ Following this state-
ment is the hand written entry:
Any further violations of the company ‘‘No Solicitation
Policy’’ or threats, intimidation, coercion, retaliation,
etc. at work toward other employees will result in your
immediate termination.
An argument ensued with Hernandez denying the allega-
tion and Lawson stating that he had received an employee’s
report on Hernandez’ activities and that he had seen Her-
nandez solicit an employee personally. Hernandez recalled
that Lawson told him:
And he said—he just told me that if anyone ever came
up to—you know, came up to Dave Lawson and told
him that I was soliciting or saying anything about the
union again in the store, that I would be terminated on
the spot.
794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Respondent cites Provincial House Living Center, 287 NLRB
158 fn. 2 (1987). That case held it not improper for an employer
with a valid nonemployee no-distribution rule to ask employees to
report on new violations of the no-distribution rule by a non-
employee who had been earlier ejected for violating the rule.
Mullen’s instruction to Marquez goes far beyond the circumstances
in Provincial which case is for that reason distinguishable.
Lawson testified that Hernandez denied the solicitation al-
legation and challenged Lawson’s ability to know what was
discussed between himself and another employee. Lawson
asked Hernandez why ‘‘employees would come to me and
tell me he was [soliciting] if he wasn’t doing it.’’ Lawson
also recalled that Hernandez asked him: ‘‘What if somebody
just came and told him that he was soliciting; what would
happen?’’ Lawson relied that they would ‘‘have to take a
look at it.’’ The meeting ended with Hernandez refusing to
sign the warning and continuing to deny the allegations.
Tinsley testified about the meeting but he was able to recall
few details.
3. The store no-solicitation rules
Substantial evidence was received to the effect that
Albertson’s stores generally and the Watauga and Irving
stores in particular have at all relevant times prominently dis-
played Respondent’s no-solicitation/no-distribution rule. Fur-
ther, employees when first employed by Respondent, includ-
ing those at the relevant stores, signed a form acknowl-
edging, inter alia, the existence of the rule.
Testimony from various witnesses was received respecting
the degree of observance the rule experienced at relevant
times at each store. Thus there was testimony of manage-
ment’s enforcement of the rule on various occasions. Other
evidence of incidents of solicitation which had not been pro-
hibited was met with testimony that other attempts to solicit
were prohibited when discovered.
B. Analysis and Conclusions
1. Allegations of violations of Section 8(a)(1) of
the Act
a. The Watauga store
(1) Paragraph 8(a) of the complaint
Paragraph 8(a) of the complaint alleges that Watauga Store
Manager Mullen interrogated an employee respecting union
activities in August. The General Counsel’s brief argues that
Marquez’ version of her conversation with Mullen in his of-
fice sustains the complaint allegation. Respondent challenges
Marquez’ version of events. At the threshold it is appropriate
to resolve the inconsistent versions of events.
As set forth supra the versions of the conversation given
by Mullen and Marquez differ not only in detail but also to
some extent in context. Marquez recalled being interrogated
by Mullen when he was complaining of misrepresentations
by union organizers. Mullen described a conversation in
which he was asked about organizers passing out cards. He
specifically denied asking Marquez to report on what union
organizers had said to her.
I credit Marquez’ version of events over the denials of
Mullen. I reach this result because I did not find Marquez
was doing other than honestly testifying as to what she re-
called. This conclusion is based in part on demeanor. Fur-
ther, the detail of her recollection was such that I do not be-
lieve she could have easily have been simply mistaken or
confused in her recollection given that she was recalling a
conversation with the store manager. I do not find Mullen
lied or that the conversation he described did not occur.
Rather I find that the conversation described by Marquez oc-
curred irrespective of the occurrence of the conversation de-
scribed by Mullen. It is much more likely Mullen would not
recall a particular conversation with 1 of the substantially
more than 100 employees under his direction than Marquez
would have mistakenly created the detailed events she de-
scribed.
My task here is therefore not one of resolving two
versions of a single conversation but rather considering the
descriptions of two separate conversations. Mullen’s testi-
mony addresses a separate conversation completely apart
from that described by Marquez save for his general denials
respecting statements attributed to him. Having credited
Marquez that the conversation she described occurred,
Mullen’s version of the other conversation is of little value
in determining what was said in the conversation described
by Marquez other in considering his general denials of re-
marks attributed to him by her.
Marquez’ credited testimony attributes to Mullen a direct
question—if anyone from the union had talked to her—and
an instruction to let him know if ‘‘anyone’’ talks to her
about the Union. These statements were not limited to situa-
tions where Respondent’s no-solicitation rule was violated
but could reasonably be interpreted to seek a report on union
activities generally.3 Mullen’s question and his instruction to
report subsequent union contacts were delivered by Respond-
ent’s highest supervisor at the facility and were directed to
an employee who had not identified her union sympathies.
Such acts are traditional violations of Section 8(a)(1) of the
Act. I so find here and therefore sustain the General Coun-
sel’s complaint paragraph 8(a).
(2) Paragraph 8(b) of the complaint
Paragraph 8(b) of the complaint alleges that Mullen ‘‘at-
tempted to intimidate and coerce an employee by implying
that Respondent would engage in retaliatory conduct due to
union activities at the store.’’ The General Counsel’s brief
argues that the testimony of witness Anna Cavin respecting
the ‘‘shoot the messenger’’ remarks of Mullen sustain this
allegation. Respondent contests Cavin’s version of events,
suggests that under any factual resolution the remark made
was no more than a simple benign jest and, further, raises
the issues of Cavin’s supervisory and confidential employee
status.
I find it unnecessary to reach the arguments of Respondent
challenging the General Counsel’s theory of a violation. This
is so because under any interpretation of Mullen’s statement,
the adverse consequences arguably implicit in Mullen’s re-
marks, i.e., the ‘‘shooting of the messenger,’’ were to fall en-
tirely on Mullen, the messenger, and not on employees gen-
erally or on Cavin in particular. Cavin testified that this was
her understanding of Mullen’s statement. In Wometco-
Lathrop Co., 225 NLRB 686 (1976), the Board reversed an
administrative law judge who found that a regional man-
ager’s statement to employees that the local manager and as-
795ALBERTSON’S INC.
4 The fact that she passed on Mullen’s statements to bakery depart-
ment employees suggests that Mullen did not, as he claimed, simply
tell Cavin that confidential information should not be shared with
other employees.
sistant manager might be replaced if the employees contin-
ued their organizational efforts violated Section 8(a)(1) of the
Act. The Board in finding no violation of Section 8(a)(1) of
the Act held that no reasonable threat could be inferred since
the local manager was a supervisor who could be disciplined
for any reason other than a refusal to participate in unfair
labor practices.
I read the Board’s holding in Wometco-Lathrop to allow
an employer to threaten to fire a store manager for that store
manager’s conduct, if that conduct is unrelated to the com-
mission of unfair labor practices. Accordingly, I find it un-
necessary to resolve the other legal or credibility issues re-
specting this allegation since, at best, the General Counsel’s
evidence is defeated by the holding in Wometco-Lathrop. Ac-
cordingly, I shall dismiss this allegation of the complaint.
(3) Paragraphs 8(c) and (e) of the complaint
Paragraph 8(c) of the complaint alleges that Mullen threat-
ened employees with discharge for engaging in union activ-
ity. The General Counsel argues on brief that this allegation
is sustained by Cavin’s testimony respecting her customer
service booth conversation with Mullen. Respondent chal-
lenges the veracity of the proffered testimony and further ar-
gues, as noted supra, that Cavin is both a statutory supervisor
and a confidential employee.
Paragraph 8(e) of the complaint was added to the com-
plaint at trial by the General Counsel to deal with the possi-
bility that Cavin would be found a statutory supervisor. The
General Counsel’s alternative theory implicit in this subpara-
graph of the complaint is that, assuming Cavin is found to
be a supervisor within the meaning of Section 2(11) of the
Act, then her repetition of Mullen’s statements to other em-
ployees would violate the Act under a parallel analysis.
The testimony of Mullen and Cavin is set forth supra. I
credit the version of Cavin discrediting Mullen where his tes-
timony is inconsistent. I was very impressed with the de-
meanor of Cavin who convinced me that she was making
every effort to truthfully answer the questions presented her
and, further, that she had a clear memory of the events about
which she testified. Mullen’s testimony respecting these
events was significantly less persuasive. Further, I credit her
testimony that she passed on Mullen’s remarks to employees
in the bakery department4 and the secretaries in the customer
service booth. In reaching this conclusion I have considered,
but not found persuasive in light of the entire record and my
demeanor evaluation here, the arguments of Respondent to
the contrary including the arguments that Cavin’s testimony
was not fully consistent with her affidavit and that Mullen
had received specific training which taught him not to do
precisely what he is alleged to have done here.
Real issues were raised respecting Cavin’s supervisory sta-
tus. I find it unnecessary to resolve those issues however be-
cause under the alternative pleading of the General Counsel’s
complaint paragraphs 8(c) and (e), the challenged statements
to statutory employees by an agent of Respondent occurred
whether they were from Supervisor Mullen to employee
Cavin or from Supervisor Cavin to the customer service
booth employees and bakery department employees.
Respondent further argues that all the secretaries, including
Cavin, were confidential secretaries and seeks a determina-
tion that such employees are outside the protection of the
Act. It is unnecessary to address such arguments however be-
cause, even if true, the result would be unchanged. Thus
Mullen, an admitted supervisor who is not contended to be
a confidential employee, made statements to Cavin and told
her to pass them on. She did so passing them on, inter alia,
to bakery department employees who are not contended to be
confidential employees. Thus, even under the most favorable
view of Respondent’s argument, Mullen’s statements were
still repeated to nonconfidential/nonsupervisory employees at
his specific direction.
Turning to the credited statements attributed to Mullen by
Cavin, Mullen told her that ‘‘talking or soliciting union’’ is
‘‘grounds for termination.’’ Cavin passed on these remarks
to other employees. Such statements are a conventional vio-
lation of the Act that needs no case citation. Respondent in
a learned and comprehensive brief makes no argument con-
troverting the proposition that such statements by a statutory
supervisor to a statutory employee violate Section 8(a)(1) of
the Act. I so find here. Accordingly, I shall sustain para-
graphs 8(c) and/or (e). Under either theory the violation and
the remedy are the same.
(4) Paragraph 8(d) of the complaint
Paragraph 8(d) of the complaint alleges that in late July
Mullen ‘‘notified employees of and threatened to enforce an
unlawful, overly broad no solicitation policy.’’ The General
Counsel on brief at pages 12–13 argues that the statements
Barslow attributed to Mullen, i.e., ‘‘you couldn’t do anything
at the store . . . when I was on company time or in the
store, then I couldn’t discuss union,’’
modified the Respondent’s policy and unlawfully re-
stricted the employees’ right to engage in union solici-
tations, and should be found to violate Section 8(a)(1)
of the Act. Our Way, Inc., 268 NLRB 394 (1983).
Respondent challenges Barslow’s version of events advanc-
ing Mullen’s recollection, each of which is set forth in great-
er detail, supra.
Based on demeanor, I credit Mullen’s version of events.
I do not doubt that Barslow’s memory of events is consistent
with her testimony. I was not persuaded however that her un-
derstanding of the events or her recollection of the details of
what was said was of such depth so as to overcome the cred-
ible assertions of Mullen in this aspect of his testimony. I
found this particularly true where Mullen was explaining the
specifics of Respondent’s no-solicitation policy. Having
made the credibility resolution noted, I find that Mullen did
not ‘‘restrict’’ Respondent’s concededly facially valid no-so-
licitation policy.
The General Counsel adduced evidence that various solici-
tations occurred at Respondent’s facilities. There is no doubt
that a facially valid no-solicitation/no distribution policy may
not be enforced only against union activities. Further, en-
forcement of a rule on a sporadic or haphazard basis for
other activities may render it ineffective against union activi-
ties. I do not find that Respondent’s enforcement of the rule
796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on this record has risen to such a level. Occasional conduct
inconsistent with the rule does not defeat it. Without resolv-
ing the testimony respecting the events, much of the incon-
sistent conduct described was not necessarily known to man-
agement. Further, there is substantial evidence that the rule
was in fact applied often and widely to activities other than
union solicitation and distribution. Given the record as a
whole on this issue, I do not find that inconsistent enforce-
ment of Respondent’s no-solicitation/no-distribution rule at
either location involved rendered the rule unenforceable with
respect to union activities at relevant times.
Given all the above, I find that the General Counsel has
not sustained her burden of proof respecting paragraph 8(d)
of the complaint. Accordingly, I shall dismiss this portion of
the complaint.
(5) Paragraph 10(a) of the complaint
Paragraph 10(a) of the complaint alleges that Watauga
Deli Manager Rick Olinde on July 28 ‘‘interrogated an em-
ployee respecting his possession of union authorization cards,
and required that the cards be given to Respondent.’’ The
General Counsel offers the testimony of Cynthia Laverne
McClendon respecting Deli Manager Olinde’s conversation
with deli clerk George. Respondent initially challenges the
versions of events of McClendon arguing the more credible
version of events was offered by Olinde. The testimony is
presented in greater detail supra.
Having considered the testimony of both Olinde and
McClendon as well as the record as a whole, I credit
Olinde’s version of events. First Olinde impressed me during
this aspect of his testimony as an honest witness who had
a clear recollection of what had occurred. McClendon was
not so impressive during this aspect of her testimony. Further
her role in the events was that of an observer. A witness in
such a removed position would be less likely to have a par-
ticipant’s memory of events or to have observed the full play
of the others’ conversation.
Given my crediting of Olinde’s version of events, I find
that George in effect volunteered the initial report of events
as well as the authorization cards themselves to Olinde. To
the extent Olinde took the cards which had been identified
as distributed in violation of the nonemployee no-distribution
rule and instructed George to refuse such distributions in fu-
ture, his actions are not impermissible. Sarkes Tarzain, Inc.,
157 NLRB 1193, 1205 (1966), enfd. 374 F.2d 734 (7th Cir.
1967), cert. denied 389 U.S. 839 (1967); Clear Lake Hos-
pital, 223 NLRB 1 (1976). The General Counsel has not sus-
tained her burden of proof respecting this allegation of the
complaint. Accordingly, I shall dismiss paragraph 10(a) of
the complaint.
b. The Irving store
The only allegation of an independent violation of Section
8(a)(1) of the Act respecting the Irving store, paragraph 9 of
the complaint, is inextricably intertwined with the allegation
of a violation of Section 8(a)(3) and (1) of the Act respecting
Hernandez, paragraph 12 of the complaint. Both paragraphs
9 and 12 will be discussed, infra, under the portion of this
analysis covering allegations of 8(a)(3) and (1) violations of
the Act at the Irving store.
2. Allegations of violations of Section 8(a)(3) and (1)
of the Act
a. The Watauga store
(1) Paragraph 13 of the complaint—the discharge
of Bennett
The parties closely litigated Bennett’s discharge and the
General Counsel and Respondent argued forcefully the rel-
evant law and facts on brief. The General Counsel’s theory
is predicated in part on the credibility of her witnesses, the
close timing of Bennett’s union activities, and his discharge
as well as the fact that Bennett was fired without the initial
imposition of lessor discipline or warnings. Respondent em-
phasizes the weakness of the General Counsel’s ascription of
knowledge of Bennett’s union activities to Respondent, the
argued lack of credibility of the General Counsel’s witnesses
on the allegation and, finally, the argued strength of Re-
spondent’s contrary evidence that the discharge was perform-
ance based and independent of protected conduct.
I have considered the record as a whole and the learned
arguments of counsel in reaching the result. Primarily, how-
ever, I have decided this allegation based on my resolution
of credibility with a significant reliance on the relative de-
meanor of the witnesses. Simply put, I did not believe Ben-
nett and Rodriguez and did believe Mullen, Diaz, and cor-
roborating employee Simpson where their testimony differed.
Based on these credibility resolutions, I find that Respondent
did not have any knowledge of Bennett’s union activities
and, further, discharged Bennett for reasons independent of
those union activities. Accordingly, I find the General Coun-
sel has not sustained her burden respecting this paragraph of
the complaint. Accordingly, I shall dismiss paragraph 13 of
the complaint.
(2) Paragraph 14 of the complaint—the termination
of McClendon
The General Counsel argues McClendon did not quit her
employment in the critical October 16 meeting with Olinde
and Mullen but was rather discharged by Respondent who
seized on the situation to remove her because of her union
activities. Respondent contends that McClendon presented
management with an ultimatum the terms of which could not
be met. Once the realities of the situation had been explained
to McClendon, argues Respondent, she chose to terminate
her employment.
At the threshold it is clear that no party contends that
McClendon’s work was other than excellent or that any
grounds for discharge existed. Further, the General Counsel
is not contending that, after her voluntary resignation,
McClendon was improperly denied rehire by Respondent.
Thus, the case turns on the meeting of October 16 and a res-
olution of the differing versions of events testified to by
McClendon, Mullen, and Olinde. The parties litigated at
some length subsequent events including McClendon’s later
conversations with the Union, with Olinde, and with staff at
a separate facility of Respondent. So too, Olinde’s conversa-
tions with other staff after the event were developed as was
a record of McClendon’s pursuit of unemployment com-
pensation.
All the above post event evidence is relevant to the Octo-
ber 16 meeting as well as the ‘‘quit’’ issue generally and has
797ALBERTSON’S INC.
been considered along with other relevant record evidence.
As will be discussed in greater detail, infra, I am convinced
that each participant left the October 16 meeting with an im-
pression of events consistent with his or her testimony. Thus
I believe each witness testified truthfully to what he or she
believed transpired at the meeting. The post event evidence
largely confirms that finding. The question of what in actu-
ality occurred at the meeting is a different proposition and
one for which this evidence is far less conclusive.
Turning to the question of what actually occurred at the
meeting, I reject the version of events testified to by
McClendon and credit the version of Mullen and Olinde. I
do so because I believe that McClendon had become suffi-
ciently upset during the discussion that she failed to accu-
rately perceive what was being told her at the time and,
therefore, also failed to commit to memory an accurate pic-
ture of events. This finding is based primarily on my obser-
vation of each witness through the proceeding with particular
reliance on their ability to perceive and recall events when
under stress. Thus, I find that McClendon quit her employ-
ment when she was told that she could not obtain an imme-
diate wage increase either through a raise in her current posi-
tion within the deli department or through a transfer to a
higher paying position in another department within the
store.
Given this finding, I further find that McClendon was not
discharged by Respondent for any reason or, more particu-
larly, was not discharged because of her union activities and
sympathies as alleged in the complaint. The General Counsel
has therefore failed to sustain her burden of proof with re-
spect to paragraph 14 of the complaint and I shall dismiss
the allegation.
b. The Irving store—paragraphs 9 and 12 of the
complaint—the events respecting Hernandez
The General Counsel alleges in paragraphs 9 and 12 of the
complaint that Respondent enforced an unlawful, overly
broad no-solicitation/no-distribution rule and issued a im-
proper written reprimand to employee Jose Hernandez. Re-
spondent admits the issuance of a warning but denies any
impropriety.
The General Counsel notes that Hernandez testified that
Lawson told him in their meeting respecting the written
warning that, if Lawson received any reports that Hernandez
was ‘‘soliciting or saying anything about the union again in
the store, that I would be terminated on the spot.’’ I agree
that, if credited, such a statement would violate the Act. I
credit Lawson’s version of this exchange however that, if he
received a report which Hernandez denied, Lawson would
have to look into it. I make this credibility resolution in part
based on demeanor as well as on the fact that Hernandez was
clearly upset during the conversation and would have been
less likely to have heard and retained the details of Lawson’s
remarks.
I also find, as noted supra, that Respondent’s Irving store’s
no-solicitation/no-distribution policy was not abandoned nor
so riddled with exceptions in its application so as to render
the rule ineffective in supporting a warning for union solici-
tation. Further I find that Hernandez was in fact soliciting
employees during their working time and in working areas,
that Respondent learned that this was so and that this was
the reason for that portion of the warning addressed to the
violation of the solicitation policy. With respect to these mat-
ters the General Counsel has failed to sustain her burden of
proof.
As I noted on the record during the presentation of the
evidence on this issues, I have much greater difficulty with
the portion of Respondent’s warning which addresses ‘‘un-
rest and disturbance’’ and ‘‘threats, intimidation, coercion,
retaliation, etc.’’ Respondent argues on brief at 92:
The reference on the warning to ‘‘causing unrest and
disturbance’’ referred to the manner in which Her-
nandez violated the rule, which, as demonstrated by the
record, had the effect of impairing on-the-job efficiency
of each of the employees who was solicited.
The warning’s recitation utilizes the conjunction ‘‘and’’ how-
ever, unambiguously stating that the reprimand was issued
for ‘‘Violation ‘no Solicitation Policy’ and creating unrest
and disturbance.’’ (Emphasis added.) Further and perhaps
more importantly, the later entry on the warning listed
grounds for Hernandez’ immediate termination in the alter-
native. Thus the warning stated:
Any further violations of the company ‘‘No Solicitation
Policy’’ or threats, intimidation, coercion, retaliation,
etc. at work toward other employees will result in your
immediate termination. [Emphasis added.]
Such a warning with its explicit threat of immediate dis-
charge, if its instructions are not heeded, goes beyond a ref-
erence to the manner in which Hernandez violated the no-
solicitation rule. Further the warning is a clear expansion of
the no-solicitation rule insofar as it was to be applied to Her-
nandez since it set additional limits on his conduct which
were to be enforced by immediate termination.
Respondent argues on brief at 92:
Even if the written warning could be read as stating
two independent reasons for its issuance, the fact that
Albertson’s has demonstrated that it reprimanded Her-
nandez for soliciting in violation of its rule is sufficient.
See, e.g., Delta Sportswear, Inc., 160 NLRB 300, 306
(1966) (‘‘where employees was discharged for two rea-
sons—soliciting another employee in violation of valid
no-solicitation rule and threatening another employee—
judge’s only task . . . is to determine whether, in fact,
Respondent discharged [the employee] for either or
both these reasons’’) [emphasis added].
Respondent argues, in effect, that Hernandez was warned for
violation of the no-solicitation rule and would have been
warned irrespective of the manner in which he engaged in
that solicitation. I agree.
I do not believe that the analysis ends there however. For
I view the warning as, in essence, two warnings: the first
issued because of Hernandez’ solicitation in violation of Re-
spondent’s valid rule, the constructive ‘‘second warning’’ is-
sued for causing ‘‘unrest and disturbance.’’ It is far from
clear, as Respondent argues, that this second warning was in-
tended to be, or may fairly have been interpreted by Hernan-
dez to have been, limited to situations in which Hernandez
was violating Respondent’s no-solicitation rule. Thus Lawson
testified that, on hearing Clark’s first report on her break
room conversation with Hernandez, he did not view Hernan-
798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 This discussion and analysis should not be taken to detract from
an employer’s continuing obligation to insure that its employees are
free from sexual or other improper advances by other employees at
the workplace. The proposition here asserted is the venerable maxim
that, where an employer is considering the discipline of an employee
for misconduct occurring in the course of union activities, the em-
ployer must be sure such misconduct did, in fact, occur. Here, Re-
spondent was not attentive to the ambiguities in Clark’s reports to
Lawson that should have put it on notice that Clark’s subjective feel-
ings of being threatened by Hernandez would not stand scrutiny as
objectively justified.
dez’ conduct as violative of the no-solicitation rule, yet
Lawson told Clark he ‘‘would see what I can do’’ about the
event evincing a determination to prevent such conduct in fu-
ture.
Since the conduct which formed the basis for the ‘‘sec-
ond’’ warning occurred in the context of Hernandez’ union
activity and Respondent knew this to be the case, Respond-
ent may not rely on a good faith but mistaken belief that
Hernandez was engaged in misconduct to justify the dis-
cipline imposed. NLRB v. Burnup & Sims, 379 U.S. 21
(1964). Given that the language of the warning was dictated
to Lawson by a regional administrator following a report by
Lawson on Clark’s reports to Lawson of Hernandez’ two
conversations with her, it is appropriate to determine if Her-
nandez’ conduct in his two conversations with Clarke justi-
fies and sustains the ‘‘second’’ warning issued him.
Consideration of Clark’s testimony respecting her first
conversation with Hernandez, the only substantial version of
that conversation in the record, reveals that she became
‘‘nervous’’ because of the surreptitiousness and secrecy with
which Hernandez treated the subject of union organization.
I find, and the record does not suggest otherwise, that Her-
nandez did not comport himself in an improper manner in
this conversation. Indeed in Clark’s recitation of these events
to Lawson, she, in her own words, clearly identified her fears
during the conversation as arising out of the secretive or con-
fidential aspects of Hernandez’ conduct.
Clark’s testimony of her second meeting with Hernandez
seemed more ominous. She initially described Hernandez as
scary and threatening. She testified that he grabbed her arm
and pulled her ear to him. Yet, immediately thereafter she re-
canted her testimony somewhat, suggesting that ‘‘it wasn’t
anything he really did or anything; it was just his mannerism.
He was just frightening.’’ In her report of this conversation
to Lawson, Clark noted that Hernandez had frightened her.
Hernandez and Clark testified in this proceeding and I had
an opportunity to consider their demeanor in light of the
events at issue. Clark is a highly sensitive young woman and
clearly naive of the realities of trade union organization gen-
erally. Hernandez presents the impression of a young man
with a serious demeanor and perhaps an overbearing manner.
Further, there may well have been different cultural perspec-
tives between Clark and Hernandez. For whatever reason, I
find Clark’s reaction to Hernandez was overwrought. More
particularly, I specifically find Hernandez’ conduct—setting
aside the issue of whether he was soliciting at the wrong
place and time—was not reasonably likely to create unrest
and disturbance, nor did it involve threats, intimidation, coer-
cion, or retaliation. Respondent may have believed the con-
trary—a finding I do not find it necessary to reach—but, if
its agents held such a belief, they were mistaken.5
I have found that Respondent would have issued the no-
solicitation portion of its warning to Hernandez irrespective
of the ‘‘conduct’’ issue discussed here. I have further found,
however, that the warning was based on and contained ref-
erence to conduct which Hernandez had engaged in and
which, if repeated, would be a basis for his immediate termi-
nation. I have found that the disputed conduct occurred in
the context of union solicitation and that the misconduct un-
derlying the conduct portion of the warning did not, in fact,
occur. Given these findings, I further find that Respondent’s
addition of the ‘‘conduct’’ or ‘‘second’’ warning in its Au-
gust 14, 1990 written warning violates Section 8(a)(3) and
(1) of the Act. Therefore, I shall sustain this portion of the
complaint.
I have found, supra, that Respondent’s no-solicitation rule
was valid and could properly be applied to Hernandez on
August 14. Thus to this extent the General Counsel’s com-
plaint is without merit and shall be dismissed. The warning
memo is however an announcement and publication of a new
and narrower set of rules of conduct for Hernandez person-
ally. Since I have found, supra, that the ‘‘threats, intimida-
tion, coercion and retaliation’’ portion of the rule was im-
properly included in violation of Section 8(a)(3) and (1) of
the Act, it follows that Respondent created, announced, and
enforced an unlawful, overly broad no-solicitation/no-dis-
tribution rule as to Hernandez in violation of Section 8(a)(1)
of the Act as alleged in the complaint. I so find.
There is a second independent basis for finding the warn-
ing to Hernandez constitutes an overly broad no-solicitation
rule in violation of Section 8(a)(1) of the Act. This analysis
stands irrespective of the issue of whether or not Hernandez
engaged in the conduct recited in the warning. The warning
threatens immediate termination if Hernandez engages in
‘‘threats, intimidation, coercion, retaliation, etc.’’ (emphasis
added). The concluding ‘‘et cetera’’—meaning other similar
things and the rest, is so obviously vague as a restriction on
conduct as to be fatally overbroad and invalid.
Presbyterian/St. Luke’s Medical Center v. NLRB, 723 F.2d
1468 (10th Cir. 1983), enfg. 258 NLRB 93 (1982). Thus
Hernandez, receiving a warning threatening to terminate him
immediately if he engages in conduct including the ambig-
uous ‘‘etc.,’’ must inevitably have his Section 7 rights fatally
chilled as he limits his activities in fear of committing some
action Respondent would view as falling under the warning
and for that reason terminating him forthwith. For this addi-
tional reason, I find Respondent’s issuance of the August 14,
1990 warning to Hernandez to be an unlawful, invalid, and
overbroad no-solicitation rule in violation of Section 8(a)(1)
of the Act.
C. Summary
As set forth with greater particularity above, I have sus-
tained the General Counsel’s allegations of violations of Sec-
tion 8(a)(1) of the Act with respect to the following para-
graphs of the complaint: 8(a), (c) or (e), and 9. I have dis-
missed the General Counsel’s allegations of violations of
Section 8(a)(1) of the Act with respect to the following para-
graphs of the complaint: 8(b), (d), and 10(a).
I have also sustained the General Counsel’s allegations of
violations of Section 8(a)(3) and (1) with respect to the Gen-
eral Counsel’s complaint paragraph 12. I have dismissed the
799ALBERTSON’S INC.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
General Counsel’s allegations of violations of Section 8(a)(3)
and (1) with respect to complaint paragraphs 13 and 14.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist there-
from and to take certain affirmative action designed to effec-
tuate the policies of the Act.
Unfair labor practices have been found to have occurred
at both Respondent’s Watauga and Irving stores. A threshold
issue is whether copies of a single notice should be posted
at each store or whether individual notices addressing the
violations at each particular store should be posted. No party
addressed this issue on brief. Given the similarity of viola-
tions it seems appropriate to set forth a singe notice which
will be posted at each facility.
The warning issued to Hernandez was held improper be-
cause it included matters beyond a narrow warning for solic-
iting other employees while they were working in violation
of Respondent’s written no-solicitation rule. As set forth in
my analysis supra, the warning was in effect two warnings—
one proper the other improper. Given this finding, and on the
unusual facts of this case, I shall not direct Respondent to
rescind the entire warning. Rather, Respondent shall be re-
quired to excise from the warning all references to ‘‘causing
unrest and disturbance’’ and ‘‘threats, intimidation, coercion,
retaliation, etc. at work toward other employees.’’ The
unexcised warning shall be deleted from Hernandez’ per-
sonnel files. Respondent will notify Hernandez in writing
that this has been done and that the deleted portions will not
be relied on in any way in future personnel actions respect-
ing him.
On the basis of the above findings of fact and on the en-
tire record, I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by en-
gaging in the following acts:
(a) At its Watauga, Texas retail store
(1) interrogating employees respecting their union
activities
(2) threatening employees with discharge for engag-
ing in union activity
(b) At its Irving, Texas retail store by enforcing an overly
broad no-solicitation/no-distribution rule with respect to an
employee.
4. Respondent violated Section 8(a)(3) and (1) of the Act
at its Irving, Texas store by issuing an improper warning rep-
rimand to an employee.
5. Respondent did not otherwise violate the Act as alleged
in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Albertson’s Inc., Fort Worth, Texas, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activities.
(b) Threatening employees with discharge for engaging in
union activity.
(c) Enforcing an overly broad no-solicitation rule.
(d) Issuing warnings based on violations of overly broad
no-solicitation rules.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind and expunge from the warning issued to Her-
nandez on August 14 all references to ‘‘causing unrest and
disturbance’’ and ‘‘threats, intimidation, coercion, retaliation,
etc. at work toward other employees.’’
(b) Remove from its files any reference to the deleted por-
tions of the warning to Hernandez and notify him in writing
that this has been done and that the deleted portions of the
warning will not be used against him in any way.
(c) Post at its Watauga and Irving, Texas retail facilities,
copies of the attached Notice marked ‘‘Appendix.’’7 Copies
of the notice, on forms provided by the Regional Director for
Region 16, in English and such other languages as the Re-
gional Director determines are necessary to fully commu-
nicate with employees, after being signed by Respondent’s
authorized representative, shall be posted for 60 consecutive
days in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure the notices are not
altered, defaced or covered by other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT interrogate employees about their union ac-
tivities.
WE WILL NOT threaten employees with discharge if they
engage in union activities.
WE WILL NOT enforce overly broad no-solicitation rules.
WE WILL NOT issue warnings to employees who violate
overly broad no-solicitation rules.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees and or employee applicants in
the exercise of the rights guaranteed them in Section 7 of the
Act.
WE WILL rescind and delete all references to conduct other
than solicitation as described in our posted no-solicitation
rule from the warning issued to Watauga store employee Jose
Hernandez on August 14, 1990.
WE WILL remove from our files all references to conduct
other than that described in our posted no-solicitation rule on
the warning issued to Hernandez and WE WILL notify Her-
nandez in writing that this has been done and that the deleted
references will not be used against him in any way.
ALBERTSON’S INC.